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Mountbatten Journal of Legal Studies

Frost: more confusion and unfairnessin psychiatric injury claims?

Kay Wheat

Introduction

On 15 April 1989 at the Hillsborough football ground in Sheffield, theFA Cup semi-final match was due to take place when the South Yorkshirepolice, which was responsible for crowd control, allowed too many spectatorsinto the Leppings Lane end of the ground. As a result, they were all crammedinto pens 3 and 4 below the West Stand causing 95 spectators to be crushedto death, and another 400 or so to be injured. Brian Harrison was at theground in the West Stand. He knew that both of his brothers were in the pensbelow, and he watched the scene unfold. It was clear that people were beingkilled and injured. He searched unsuccessfully for his brothers, and then satup all night waiting for news. At 11 am the following morning he was toldthat his brothers were dead. He suffered psychiatric injury as a result. Hiswas one of the cases considered in Alcock v Chief Constable of SouthYorkshire Police. l Police Constable Glave was on duty in the gymnasiumwhere the bodies were brought. He helped to move bodies and was on dutyuntil 1.30 am the next morning. The dead and injured were unknown to him.PC Glave suffered psychiatric injury, and his was one of the cases consideredby the Court of Appeal in Frost v ChiefConstable ofSouth Yorkshire Police. 2

PC Glave was successful. Brian Harrison was not, as he failed to establish asufficiently close relationship with his brothers, and Lord Oliver held that hehad not been exposed to a sufficiently shocking perception of the event. 3

What is the difference between the two cases?

[1992] 1 AC 310.

[1997] 1 All ER 540.

Supra n 1 at 417.

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Although in Frost, three of the successful appellants were found to berescuers, PC Glave, who was not a rescuer, nevertheless succeeded, because,due to the negligence of his employer, he had been exposed to the horror ofthe events.

This article seeks to examine questions raised by the differencesbetween the principles of law employed in the respective cases of BrianHarrison and PC Glave, and will argue that, despite the difference inapproach, the old 'nervous shock' restrictions are alive and well and operatingin Frost, and further muddying the murky waters of psychiatric injury claims.

Legal principles - 'nervous shock'

Although the expression 'nervous shock' is anachronistic, it is useful asshorthand to describe negligently inflicted psychiatric illness, when there is nopre-existing relationship between the defendant and the plaintiff, and is usedhere accordingly.

Primary and secondary victims

The special restrictions in nervous shock claims have developed due tothe conceptual wrangles around the concept of 'proximity'4 and this has led toa distinction between primary and secondary victims. A primary victim iseither someone who is physically injured or is within the range of foreseeablephysical injury. 5 If the plaintiff can bring herself into the category of aprimary victim, then, subject to proving causation and showing that she issuffering from a recognised psychiatric condition, she will succeed inrecovering damages. A secondary victim is necessarily outside the range offoreseeable physical injury. Her psychiatric injury has been caused becauseof what has happened to a primary victim. In order to succeed, the secondaryvictim must satisfy three criteria. First, she must be physically close to the

4 Regarded as being part ofthe criteria of a duty of care in Donoghue v Stevenson [1932] AC 562, at 580, and

see the subsequent principal negligence cases such as Caparo Industries pic v Dickman [1990] 2 AC 605 andMurphy v Brentwood District Council [1991] AC 398.

See, for example, Page v Smith [1996] AC 155, at 184.

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event which has damaged or threatened the primary victim,6 which event mustmake a sudden impact on her unaided senses (the 'impact' rule); secondly, shemust have close ties of love and affection with the primary victim,? andthirdly, the event tnust be one that is shocking to a person of normal fortitude(the 'fortitude' rule). 8 These criteria have been the subject of much academiccriticism and accused of reflecting unjust policy considerations. 9

Rescuers

Rescuers are a special category of victim because although they may beprimary victims within the range offoreseeable physical injury, even if theyare not and have no close ties with any of the primary victims, they cansucceed. 1O This is generally regarded as being based upon policy, and this isexamined further below. As far as professional rescuers are concerned it hasbeen established in the House of Lords that they can recover for negligentlyinflicted physical injury, 11 but Frost was the first opportunity for an Englishcourt to consider liability for psychiatric injury (although other police officersinvolved at Hillsborough who clearly came within the category of rescuer hadtheir claims settled, as did some of the King's Cross firefighters).

6 11lis means being present at the event or its immediate aftermath -McLoughlin v O'Brian [1983] 1 AC 410.

7 Supra n I.

Bourhill v Young [1943] AC 92.

See, for example, Michael A Jones, Liability for Psychiatric Illness - More Principle, Less Subtlety? [1995]

4 Web JCLl, where the restrictions are described as 'wholly artificial and arbitrary', and Harvey Teff, TheRequirement of 'Sudden Shock' in Liability for Negligently Inflicted Psychiatric Damage, [1996] Tort LawReview, Vol 4, No 1,45.

10 See Chadwick v British Railways Board [1967] 1 WLR 912, approved in McLoughlin v O'Brian [1983] IAC410.

11 Ogwo v Taylor [1988] AC 431.

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Legal Principles - Employers' Liability

Although police officers are not employees,12 the relationship betweenthe Chief Constable and his officers is analogous to that of master and servantand there was no dispute in Frost that the principles of employers' liabilitycould apply without modification.

The law in this area is a species of the law of negligence, andencompasses a personal duty on the part of an employer to care for the healthand safety of its employees,13 and strict vicarious liability for the primarynegligence of employees, ie regardless of want of care on the part of theemployer. 14 In Frost there was no discussion of these two aspects, andnothing turned on whether the breach was of the employer's primary duty ofcare, or whether the liability was a vicarious one in respect of the negligenceof one or more of the police officers who mismanaged the football crowd onthat day. No doubt this reflects the fact that in both cases (employer/employee, employee/fellow employee), there exists a prior duty of care.However, it is likely on the facts that the liability was vicarious. 15 This articlewill argue that when one considers this case from the point of view ofvicarious liability and compares it with the nervous shock cases, it results ininconsistency, illogicality and injustice.

Proximity and employers' liability

The duty of care owed to employees, whether primary or vicariously, isan established duty which exists by virtue of the employment relationship. Itmight be thought that in the light of this, there is no place for consideration ofthe concept of proximity as this is used to decide whether a duty of care wasowed in the first place. However, the damage resulting from the breach must

12 Fisher v Oldham Corpn [1930] 2 KB 364.

13 Wi/sons and Clyde Coal Ltd v English [1938] AC 57.

14 As far as the police are concerned, the vicarious liability of a Chief Constable for the acts of his officers in the

purported execution of their duty is in statutory form in section 48 of the Police Act 1964.

15 See for example the observations of Judge LJ at 574, supra n 2.

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be reasonably foreseeable. 16 This will be related to the obligations arising outof the contract of employment, one of which is the employer's implied duty tocare for the health and safety of the employee, which includes employees'mental health. I? The duty of the employer will be definable by reference to thegeneral principles of negligence. Consequently, the concept of proximity maybe relevant to consideration of foreseeability, not of any damage resulting, butthe particular type of damage such as psychiatric injury. 18

In his judgment Rose LJ brings in proximity in the following way: 'Thestandard of care required in the discharge of that duty and the degree ofproximity will of course vary from case to case according, among othermatters, to the nature of the job and the degree of fortitude to be expected ofthe employee.'19 The proximity requirement, therefore, is satisfied byreference to the fortitude which it would be appropriate for an employee topossess, depending upon the nature of the duties. Thus, the nervous shocknotions of 'impact' and 'fortitude' are being applied.

Summary of the decision in Frost

The principles of law applied by Lord Justices Rose and Henry can besummarised as follows. First, there is a duty to both civilian and professionalrescuers. Secondly, in Page v SmitJr° Lord Lloyd's categorisation of primaryand secondary victims and the requirement that there be foreseeability ofpsychiatric injury in the case of secondary victims did not apply in the presentcase as his categorisation did not have rescue cases in mind. Thirdly, thepurpose of distinguishing between primary and secondary victims is to applylimiting criteria to the latter, which do not have to be applied when there is a

16 See, for example, Paris v Stepney Borough Council [1951] AC 367.

17 See Walker v Northumberland County Council [1995] 1 All ER 737.

18 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co. The Wagon Mound [1961] AC 388;

Overseas Tankship (UK) Ltd v Miller Steamship Co PtyLtd, The Wagon Mound (No 2) [1967] 1 AC 617.

19 Supra n 2, at 550.

20 Supra n 5.

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pre-existing duty of care owed - here, by virtue of the master and servantrelationship.

Applying these principles to the plaintiffs, one of them, Sergeant Smith,failed in her appeal because she was not on duty at the football ground at thetime but attended at the hospital mortuary stripping bodies and dealing withrelatives. She did not succeed as she was not a rescuer and was not at theground when the incident occurred. It was said that no duty was owed to her,presumably meaning no duty in respect of psychiatric injury. Thecircumstances of PC Glave have already been outlined: he succeeded because,although not a rescuer, he had been exposed to the 'horror of the event'.Anthony Bevis and Mark Bairstow both attempted to revive bodies. Theysucceeded as rescuers participating in the immediate aftermath of the event.Inspector White pulled people out of the congestion and joined a line ofofficers passing the dead and injured from the pens. He succeeded both as arescuer and as an employee within the area of risk.

Judge LJ, dissenting, accepted the rescue principle but said that not allrescuers are entitled to recover because some are primary victims (at risk ofphysical injury), and others are secondary victims. The case of Knightley vJohns21 had been cited in support of the plaintiffs. This was the case of apolice officer physically injured in a road accident as a result of a policeinspector's negligence. Judge LJ accepted the correctness of the decisionbecause the officer was a primary victim in the area of physical risk. If hisinjuries had been psychiatric rather than physical he would have succeeded.Judge LJ did not accept that employees are automatically primary victims byvirtue of the employment relationship. 22

At the same time as the Frost appeals, the court considered the case ofDuncan v British Coal Corporation. 23 The employee was a pit deputy at acolliery when one of his men was crushed to death at the coal face as a resultof the employer's negligence. The plaintiff was 275 metres away and arrivedat the scene within four minutes. He spent some considerable time trying torevive the man. In a unanimous decision the court rejected his claim. Rose

21 [1982] 1 WLR 349.

22 Supra n 2, at 574-575.

23 Supra n 2.

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LJ said that, although he was 'proximate in time', he was not 'geographicallyproximate' when the incident occurred, and that, when he arrived there was nodanger to him or the deceased. Rose LJ went on to say that the first aid thathe rendered was 'plainly within the scope of his employment'.24

Frost raises considerable disquiet about the unfair contrast between thecases of the police officers and those of the relatives of Hillsborough victimswho failed in their claims. This was alluded to in the dissenting judgment ofJudge LJ, who expressed the view that the same sorts of nervous shock controlmechanisms should apply to both types of plaintiff 25 The majority decisionhowever seems to be an attempt to avoid the embarrassment of the contrastbetween the two sets of victims, by appearing not to deploy the principles usedin nervous shock cases at all. By placing the officers in the category ofemployees the disparity issue could to some extent be avoided. After all, howmany other cases are likely to arise when the shocking event itself has beencaused by the professional rescuers involved? Henry LJ was at pains to pointout that the disparity between the success of the police officers and the failureof the relatives was brought about by the application of different principles oflaw, and not by favouritism towards police officers?6 Nevertheless, althoughon the face of it, there appears to be no need for control mechanisms to bedeployed in the Frost case, an examination of the majority judgments showsthat such mechanisms are being used in the context of employers' liability,albeit in a different way. The artificial concepts used in nervous shock in theform of impact and fortitude permeate the decision.

Issues raised by Frost and Duncan

First, what, if any, are the implications for the primary/secondary victimdistinction? Secondly, how are the fortitude and impact rules applied?Thirdly, what are the implications for the way in which we regard rescuers?Fourthly, do the cases have some unacceptable implications if one considersthem in the light of employers' vicarious liability? Finally, as the disparity

24 Supra n 2, at 454.

25 Supra n 2, at 572.

26 Supra n 2, at 568.

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between the cases of Brian Harrison and PC Glave gives cause for concern,could a more coherent result be constructed whilst still remaining within thepresent framework of the law?

Primary/secondary victims

The dissenter, Judge LJ, maintains the primary/secondary distinction,but said that these officers were not primary victims because they were not atrisk?7 He distinguishes Chadwick v British Railways Boarcf8 by stating thatthere, the plaintiff was at risk. However, it is clear from that case thatpersonal risk was not the basis of the decision, and this was acknowledged bythe House of Lords in McLoughlin v O'Brian. 29

Rose LJ stated that the primary/secondary distinction is unnecessary inemployers' liability.30 If so, what are we to make of his statement that liabilityarose in this case because the officers were exposed to the risk of physical orpsychiatric injury? If the risk was of psychiatric injury alone, then there couldonly be such a risk because of the 'impact' rule. Doubting its correctness, RoseLJ refers to the case ofRobertson v Forth Road Bridge Joint Boarcfl wherean employee failed to recover damages for psychiatric injury caused bywitnessing the death of his fellow employee who was blown over the ForthRoad Bridge as a result of the employer's negligence. He failed as he wasfound to be a bystander and, as such, the employer's duty of care extended nofurther than the general duty to non-employee bystanders. Henry LJ is not socritical of the decision in Robertson, because as the event was over so quickly,there may have been no time to 'participate' in it. The implication of HenryLJ's statement is that in order to participate in an event it must have aminimum temporal duration. This is hard to reconcile with Page v Smith,

27 Supra n 2, at 576.

28 Supra n 10.

29 [1983] AC 410 at419.

30 Supra n 2, at 576.

31 [1995] SLT 263, CtofSess.

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where the circumstances concerned a simple car collision, which probablytook no longer than the event in Robertson. Certainly, the degree oftemporality does not help in framing a definition. In Alcoc122 Lord Oliverreferred to a primary victim as being 'involved either mediately orimmediately' as a participant, which suggests a slightly wider interpretationand, in any event, does not imply a required minimum duration. Similarly, torequire some form of active participation in terms of 'doing something', again,means that Mrs Dulieu, who saw the horse van coming through the windowof the public house, would not have been the primary victim that she clearlywas. 33

It may be argued that the rejection of the primary/secondary victimdistinction in Frost was simply another way of saying that the restrictionswhich give rise to the distinction in nervous shock cases do not apply here.But that cannot be the case. Certain aspects of those rules are thought to berelevant, namely the rules relating to impact and fortitude, the latter leadingto a distinction between two types of primary victim.

The 'Fortitude' Rule

There is a strong argument that the Court of Appeal's decision is basedupon an attempt to avoid a direct confrontation with the public policy issuesin allowing professional rescuers to recover damages for psychiatric injury.However, Rose U stated quite clearly that professional rescuers can recover:'The only difference between professional and non-professional rescuers is thatthe former are more hardened and therefore it may be more difficult to foreseepsychiatric injury to them, but this does not change the scope of the dutyowed. ,34 By stressing the normal fortitude rule, was the court hoping that, indealing with foreseeability of psychiatric injury at the breach stage, this wouldavoid any public policy issues which could have arisen in the prior stage of theestablishment of a duty of care?

Certainly Frost suggests that there can be two types of primary victim -

32 Supra n 1, at 407.

33 Dulieu v While & Sons [1901] 2 KB 669.

34 Supra n 2, at 546.

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those who must possess some degree of normal fortitude (eg employees suchas police officers) and those who need not (plaintiffs in no pre-existingrelationship giving rise to a duty ofcare, such as the plaintiff in Page v Smith).Rose LJ refers to the concept of normal fortitude as applying to a primaryvictim:

'Once it is accepted that there is no justification for regarding physicaland psychiatric injuries as different kinds of injury, when an employernegligently causes physical injury to one employee, it seems to me to beimpossible to contend that he is not equally liable to a fellow employeeof normal fortitude working on the same task who sustains psychiatricinjury, whether through fear for himself or through witnessing whathappens to his fellow workman'.35

It could be argued that the reference to normal fortitude in Frost wasanother way of saying that it would not have been foreseeable by the employerthat psychiatric damage would have resulted unless the event was such as tocause psychiatric injury in one of normal fortitude. However, that is preciselywhat the normal fortitude rule is about outside the context of employers'liability. In Page v Smith the foreseeability of physical injury was enough. Isthe implication ofFrost that the duty owed to the officers qua employees willvary so that, if the negligent act does not put them at risk physically, thenpsychiatric injury is unforeseeable? This cannot be the case because it doesnot square with the judgment of Rose LJ referring to those being within thearea of risk of physical or psychiatric injury, and his conclusion that liabilityarises because of exposure to the horror. Further, if they are found to be atrisk of psychiatric injury only, then (and this is one of the controversial aspectsof the decision), they are in a better position than a bystander. The suggestionby Henry LJ that this can be countered by the fact that those who were therecarrying out their duties had no choice but to be there36 does not meet theobjection that non-employees may not have had a choice in the moral sense(eg off-duty professionals and civilian helpers not classifiable as rescuers).

35 Supra n 2. at 550

36 Supra n 2, at 560.

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The remark by Henry U that an off-duty policeman at the match could, if hisconscience permitted, have taken no part in the events whatsoever, and gonehome with the crowd',37 (emphasis added) reinforces the objection rather thanneutralises it. The clear implication of the 'no choice' argument of Henry Uis that if a civilian helper had worked along side PC Glave and had beenexposed to the same experiences, that civilian's consequent psychiatric injurywould not have been compensatable.

However, it is clear from Frost that certain types of employee may beexpected to have more than 'normal' fortitude: the numbers affected stronglysuggest that ordinary police robustness is not protection against an experiencesuch as this (a conclusion that would not surprise the doctors)'.38 If the issueis approached from the point of view of foreseeability, then not only can the'normal' fortitude rule be sustained, but more than normal fortitude may berequired in certain areas of work. This is consistent with Walker vNorthumberland County Council. 39 It can be argued that it is simply notforeseeable that psychiatric harm will result. This means that the normalfortitude rule is being used more harshly in employers' liability cases such as~~~~~~~~~It~~~~~~~~~

out of allowing recovery by professional rescuers. On the contrary, it has hadthe opposite and highly unpalatable effect: police officers possessed of morethan so-called normal fortitude may be compensated in identicalcircumstances in which civilians deemed to be less resilient and, therefore,more likely to be affected, have not been.

It can be asked whether this - what could be called the 'hardened skull'rule - explains the statement by Rose U that the degree of fortitude to beexpected from an employee will go to the standard of care.40 This referenceto deciding on the standard ofcare is all very well in situations where the onlyvictims of the employer's negligence are the employees themselves. However,

37 Ibid.

38 Supra n 2, per HenryLJ at 557, and see also the comments ofRose LJ at 551 on the case of DC Hallam beingexposed to excessively horrific events such as were likely to cause psychiatric illness even in a police offi=.

39 [1995] 1AllER737.

40 Supra n 2, at 550.

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where, as here, there are non-employee victims, it means that differentstandards of care will apply to the same act of negligence depending uponwhether the victim is an employee or not, and this must surely be an affrontto common sense.

The 'Impact' Rule

Sergeant Smith was not successful because she did not experience theimpact of the event or its immediate aftermath. It was said that she was notwithin the area of risk, and that what she subsequently did was no more thancould properly be asked of any police officer in the ordinary carrying out ofher duties following a serious incident.41

The case of Walker v Northumberland County Councit42 confirmed thatdamages can be recovered for psychiatric injury when there is no causative'shocking' event, where the injury was a foreseeable result of an excessive,stressful workload. The plaintiff in that case was not exposed to physical risk,so the physical/psychiatric division was irrelevant. However, the impact rulewas used in Frost. 43 Clearly, there had to be a causative event but, given thefact that the essence of this case was the emphasis on the employer's preexisting duty of care, was there any need to use the very restrictiverequirements of the nervous shock impact rule to determine liability?

In Frost, the case ofMount Isa Mines v Pusey was referred to in all thejudgments.44 That case, decided by the High Court of Australia, concerned aplaintiff who, whilst working as an engineer for his defendant employer, heardthe sound ofan explosion in the same building. He went to the scene and sawone of the two electricians who had been working on a SWitchboard, severelyburnt. He supported the electrician (with whom he was not acquainted) outto an ambulance. As a result, the plaintiff became psychiatrically ill. He

41 Supra n2,perRoseLJat551.

42 [1995]1 All ER 737.

43 In his judgment, Rose LJ refers to the successful plaintiffs who were not rescuers (Bevis and Bairstow) as

being in the 'area of risk': supra n 2, at 551-2; and see Henry LJ at 567.

44 [1970]125 CLR 383.

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succeeded in his claim on the basis that it was foreseeable that anotheremployee in the building would go to the scene. Walsh J said that: '...the factthat the respondent was an employee was a relevant fact in deciding whetheror not he was a person within "the area of potential danger" or within the areaof risk. ,45 The reference to a geographical or spatial area, therefore, is relevantin deciding whether a particular person would be there, or likely to go there.So, if the event takes place at work, or a place where workers are sent (as inFrost), then those people will be foreseeable as persons who might be injured.What must be said is that the reference to the 'area of risk' cannot mean onlythat the plaintiff and the physically afflicted victim must share some sudden,shocking event or its immediate aftermath. It is arguable, however, that bothLord Justices Rose and Henry interpreted it thus, and therefore felt obliged toexclude the claim of Sergeant Smith, who, it was said, did no more than anyother police officer would have done following 'a serious incident'.46 Althoughthe serious incident had been caused by her employer's antecedent negligence,the majority of the judges were applying the 'impact rule' control mechanismused in nervous shock. This is one of the very control mechanisms that JudgeLJ, dissenting, said should apply to employees, just as they apply to others(albeit, in his reasoning, by maintaining the primary/secondary victimdistinction and placing the police officers in the latter category).

The question arises as to whether it is helpful to carry out this sort ofmutation of legal principles. It might be said that in Frost Sergeant Smith'scase was being approached from a remoteness of damage analysis whichapplies to all torts and, therefore, it was not an arbitrary blend of conceptsfrom two discrete areas of negligence. This is an attractive way out. But thisnot referred to by Rose and Henry LJJ. Furthermore, Rose LJ distinguishedSmith's case by saying that, as she had not been at the ground at the time, 'shewas not therefore within the category of those officers to whom, being withinthe area of risk when the incident occurred, a duty of care was owed by virtueof the master and servant relationship'47 (emphasis added). Despite the preexisting relationship, the test, therefore, was one of duty, not remoteness.

45 Supra n 44, at 412.

46 Supra n 2, at 551.

47 Ibid.

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In the other case considered at the same time as Frost, Duncan v BritishCoal Corp, the plaintiffdid not succeed because of failure to meet the impactrule. It will be recalled that he was not present when one of his men wascrushed, and although he arrived at the scene within four minutes, the lack ofgeographic proximity was enough to defeat his claim. In Mount Isa Mines vPusey,48 although there was still some confusion at the time that the plaintiffarrived on the scene of the explosion, in the event he was not endangered, andimportantly, it was not suggested that he suffered the injury because of risk ofphysical injury to himself. Rose U describes this as a rescue case. But is thereany significant difference between these circumstances and those in Duncan?

An explanation of sorts can be provided by looking at the contractualobligations of the employees. In Mount Isa Mines, there was no suggestionthat the plaintiff went to the scene to carry out duties required of him by hiscontract of employment. On the other hand, Mr Duncan was required to carryout first aid as part of his job and, as a police officer, Sergeant Smith attendedat mortuaries and so on. It could be argued that they failed in their claimsbecause witnessing a nasty event was not within the scope of theiremployment, but carrying out first aid or other ameliorative duties, as aconsequence of that event, was within the scope of it. However, this is ahighly speculative interpretation, and does not meet the objection thatinvolvement in such nasty events is within the scope ofa professional rescuer'semployment.

Rescuers

In Frost, Rose and Henry UJ supported the proposition that rescuers areprimary victims,49 whilst, dissenting, Judge U said that sometimes rescuerswere primary and sometimes they were secondary victims. 50 According toJudge, rescuers who are primary victims are those who are at risk in some wayfrom the event itself; others may not be at risk but will still be regarded asrescuers. He cites those people who 'search' for victims, such as Brian

48 Supra n 44.

49 Supra n 2, at 549; and 563.

50 Supra n 2, at 573.

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Harrison, as being properly regarded as rescuers. It is difficult to argueagainst this view, given that the most well-known rescuer caseS I containing theepigrammatic phrase of Cardozo J - 'danger invites rescue' - was just such a'searcher' case. In that case the plaintiff and his cousin were on one of thedefendant's railway cars, when the cousin was thrown from it by thedefendant's negligent act. The plaintiff went through the darkness to searchfor his cousin, and fell and injured himself. Although this case is aboutphysical injury, the principle at'the heart of it must surely apply to psychiatricinjury too. The plaintiff had been put into a situation by the defendant'snegligence whereby he had to choose between his own well-being and that ofanother. In choosing the latter he is injured. It makes no difference whetherthe impulse to rescue is instinctive or after due deliberation on the risksinvolved. 52

The statement of Judge LJ, that not all rescuers can recover, that is, ifthey are secondary victim rescuers, and not in fear for themselves, isquestionable. The rescuer's claim is a free-standing claim based on anindependent right. A rescuer is in a special position because he is owed a dutyeven if there was no duty owed to the rescuee. 53 This lends much force to theargument that the rescuer is always a primary victim. Further, could it everbe an essential part of the 'rescue principle' that, if there is no fear, then thedegree of courage required is less? This sort of interpretation does not applyto physically injured rescuers. They may have no fear, because the degree ofdanger is not apparent, but if they then suffer physical injury, then the rescueprinciple allows them to recover damages. The psychiatrically injured rescuermay have no fear for precisely the same reason, that is, nothing in the situationsuggests exposure to serious trauma. However, if, say, a body is discoveredwhich is unexpectedly, and horribly mutilated, surely the same principleapplies? If not, it would mean that a lesser degree of courage is rewarded inphysical injury than in psychiatric injury, which, on any reasoning, must beunacceptable.

It may be asked why Judge LJ perceives the need for two different

51 Wagner v International Ry Co (1921) 232 NY 176, NY Ct of Apps.

52 Haynes v Harwood [1935] 1 KB 146, at 158.

53 Videan v British Transport Commission [1963] 2 QB 650.

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categories of rescuer. He states that it is unfair to treat professional rescuersmore favourably than civilian rescuers,54 and that surely must be right. Thejudgments of Rose and Henry LJJ state that they are not being treateddifferently. The advantage given to PC Glave derived from his status as anemployee of the tortfeasor. However, this means that there is an unfairdistinction between the employee/professional and the civilian. Presumably,the majority judgments are relying on the rarity of such a case as Frost, wherethe emergency services themselves are liable in negligence. Nevertheless, the'rarity' factor is no justification for bad law.

Employers' Vicarious Liability

The employee's duty of care to her fellow employees is fixed by thegeneral rules of negligence. The employer will simply pick up the vicariousliability for this, regardless of the lack of primary culpability. However, itdoes not affect the standard of care required of the negligent employee. Thatthis could give rise to difficulties was acknowledged by the High Court inMount Isa Mines, but it was unnecessary to resolve these, because the trialjudge had found that there was vicarious and primary·liability.55

The difficulties envisaged in that case, however, would have beennothing compared with the situation in Frost, as in Mount Isa all the victimswere employees. In contrast, in Frost the victims were both members of thepublic and police officers. The implication of the decision is that, if liabilitywas vicarious, then there was a duty owed by the police officers to theircolleagues in respect of psychiatric illness, but there was no duty owed to themembers of the crowd who were psychiatrically injured by the very samenegligent acts. This is another affront to common sense.

A more coherent classification of plaintiffs?

Negligently inflicted psychiatric injury has given rise to some of themost tortuous reasoning in the law of negligence and, following Frost, we are

54 Supra n 2 at 574.

55 Supra n 44, at 400-401.

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now contemplating different kinds of primary victim, different kinds ofrescuer and different kinds of fortitude. Furthermore, we are confronted withthe absurd situation whereby those with responsibility for safety at a publicevent owe each other obligations of safety that they do not owe to the publicwho they are paid to protect. The use of the law of employers' liability hasresulted in nothing but confusion and injustice.

In Mount Isa Mines, it is true that both McTiernan J and Menzies Jstated that the basis of the decision was a breach of an employer's duty of care,and Barwick CJ referred to the employee coming on the scene 'in the courseof his employment'. But Barwick CJ's purpose in referring to this was toargue that the employee was in the 'area of foreseeability to be attributed to ...his employer'. 56 Further, the judgments of Windeyer J and Walsh J make itclear that the duty owed is not only the duty of an employer: '...1do not wishto be taken as saying that where a duty of care springs only from foreseeabilityof harm to a 'neighbour', and not out of a relationship of status or of contractsuch as master and servant, a different result would follow'. 57 Similarly,Walsh J states:

'... the liability of the appellant does not rest necessarily upon a dutyarising out of the relationship of employer and employee. It rests upona finding of a duty owed to all persons of whom it might reasonably beanticipated that they might suffer injury (of the relevant kind) and upona finding that the respondent was such a person. ,58

On this basis there is no more reason to find that PC Glave mightreasonably be anticipated to suffer injury than Brian Harrison.

Furthermore, there must surely be an argument that people like BrianHarrison were not 'voluntary' participants in the events at Hillsborough thatafternoon. He was not a bystander in the sense that he was standing somedistance away, passively watching something with which he had no directconnection or concern. He was in the midst of that mayhem; his brother was

56 Supra n 44. at 389.

57 Supra n 44, per Windeyer J, at 404.

58 Supra n 44, at 412.

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somewhere in the crowd and he knew him to be at risk. This is acknowledgedin the judgment of Judge LJ who says that none of the plaintiffs in Alcockcould fairly be regarded as mere bystanders or spectators. However, whilst heuses this observation to argue that they were secondary victims, and that notall secondary victims should succeed, it is argued here that because they werenot mere bystanders they should have succeeded. The primary/secondarydistinction is, after all, only an application of the concept of proximity. In hisjudgment, Henry LJ states that he prefers the proximity test rather than theprimary/secondary labelling test,59 and it is arguable that the application of theproximity concept means that 'unwilling participants' such as Brian Harrisonare not disinterested bystanders. Similarly, a plaintiff as in McFarlane vEECaledonia,60 would fall into the same category. The definition may bedifficult to frame, and would give rise to some hard cases, but that does notmean that there is no discernible distinction between true bystanders and thosewho are trapped in a situation by their employment or by the human impulseto search for relatives or friends who may be injured. They should not berequired to establish a close tie of love and affection with such relatives orfriends.

Moreover, consider the additional argument used by Henry LJ insupport of allowing the officers' claims. He states that as a matter of publicpolicy the police should be encouraged to promote safe practices:

'My emphasis has been on the police officers as direct victims becauseof the employer/employee relationship. While that duty of care to themis a factor in a case such as this where their employer was negligent, Iwould expect a duty to be owed to them by any defendant who causedsuch a disaster as this. Deterrence is part of the public policy behindtort law'.61 (emphasis added).

59 Supra n 2, at 561.

60 [1994] 2 All ER I. The plaintiff was on a support vessel 550 metres away from the Piper Alpha oil rig

explosion. Although employed by the defendant he was off duty at the time and, although he carried out somehelpful tasks, was not found to be a rescuer. In consequence, the Court of Appeal treated him as a merebystander.

61 Supra n 2, at 567.

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Although the suggestion is that the police were owed a duty which maynot have been owed to others, it is arguable that he was referring to a generalduty to all rescuers. However, it is clear that the safe practices, which shouldbe encouraged, are not only about protecting people in the position of policeofficers. They are also about protecting everyone in attendance at publicevents where there is a responsibility, paid for by the public and the organisersof those events, for ensuring the safety of those people in attendance. Thepublic policy argument, therefore, has no exclusive relevance to rescuers,professional or otherwise. Moreover, the argument lends support to the viewthat those who had bought tickets for a peaceful recreational occasion, on theunderstanding that they would be safe, should not be owed a lesser duty ofcare than those officers who were paid to be there. It is suggested that theadoption of the 'unwilling participant' category would avoid at least some ofthese difficulties.

Conclusion

It has not been the purpose of this article to suggest that it was wrongto compensate these police officers. However, the emphasis the majorityjudgments placed upon the fact that different principles of law were beingapplied and that police officers were not being singled out for preferentialtreatment, does nothing to remove the unjust disparity between the decisionsin Alcock and Frost. Furthermore, some of the reasoning in Frost only addsto the confusion in an area already filled with artificiality and the arbitrary useof judicial concepts. It is suggested that this unjust farrago might, to someextent, be avoided by a more coherent approach to the duty of care to avoidnegligently caused psychiatric injury, so that PC Glave and Brian Harrison fallinto the same legal category. Ifpsychiatric injury unaccompanied by physicalinjury is to be treated differently from physical injury, then, regardless ofwhether it arises from a pre-existing relationship, there should be paritybetween claims of victims.

Kay WheatSenior Lecturer in LawNottingham Trent University

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mountbatten journal oflegal studies frost: more …ssudl.solent.ac.uk/955/1/1998_2_1.pdf ·...

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